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United States Court of Appeals,
Fifth Circuit.
No. 95-30974
Summary Calendar.
Craig MANUEL, Plaintiff-Appellant,
Fidelity & Casualty Company of New York, Intervenor, Plaintiff-Appellant,
v.
CAMERON OFFSHORE BOATS, INC., Defendant-Appellee.
Jan. 15, 1997.
Appeals from the United States District Court For the Western District of Louisiana.
Before POLITZ, Chief Judge, and JONES and WIENER, Circuit Judges.
POLITZ, Chief Judge.
Craig Manuel appeals the district court's dismissal of his 33 U.S.C. § 905(b) negligence claim.
For the reasons assigned, we affirm.
Background
Manuel was an employee of Harrington Enterprises, Inc., a sandblasting and painting firm.
In September 1990 Harrington was under co ntract to Texas Eastern Gas Pipeline Company to
perform work on a fixed platform on the outer continental shelf.
On September 18 Manuel and several other employees were working aboard the M/V DAVIS
McCALL III, a vessel owned and operated by Cameron Offshore Boats. Manuel was responsible for
operating and monitoring Harrington's sandblasting equipment on the vessel, which at that time was
moored adjacent to Texas Eastern's platform. Manuel and his supervisor were on the back deck of
the boat in the "dog house" when Manuel heard a hissing so und. Manuel left the dog house and
moved quickly toward the stern of the vessel where the sandblasting hoses, which extended from the
vessel up to the platform, were located.
Upon reaching the stern Manuel saw a bubble developing on one of the sandblasting hoses.
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Fearing that the hose would explode, Manuel ran toward the compressor to turn it off. As he ran his
feet became entangled in an unused mooring line on the deck, causing him to fall, injuring both his
left knee and back.
Manuel filed suit against, inter alia, Cameron,1 claiming damages for its negligence under 33
U.S.C. § 905(b).2 Fidelity & Casualty Company of New York, Harrington's insurer, intervened
seeking recovery of compensation payments made to Manuel. After a bench trial the district court
rendered judgment in favor of Cameron, concluding that Cameron had not breached any legal duty
owed to Manuel under section 905(b). Manuel and Fidelity & Casualty appeal.
Analysis
We review the district court's findings of fact for clear error and consider all questions of law
de novo.3 The rulings on negligence and causation are findings of fact;4 the determination of the
existence vel non of a legal duty is a question of law.5
Under section 905(b) a vessel owner owes three specific legal duties to independent
contractors working on the vessel: (1) the turnover duty, (2) the duty to protect agai nst hazards
1Defendants Marathon Oil Company and Texas Eastern were both dismissed prior to trial.
2This subsection reads in pertinent part as follows:
(b) Negligence of Vessel. In the event of injury to a person covered under this Chapter
caused by the negligence of a vessel, then such person ... may bring an action against such
vessel as a third party in accordance with the provisions of section 933 of this title, and the
employer shall not be liable to the vessel for such damages directly or indirectly and any
agreements or warranties to the contrary shall be void. If such person was employed by
the vessel to provide stevedoring services, no such action shall be permitted if the injury
was caused by the negligence of persons engaged in providing stevedoring services to the
vessel.
The liability of the vessel under this subsection shall not be based upon the warranty of
seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in
this subsection shall be exclusive of all other remedies against the vessel except remedies
available under this Chapter.
3Mendes Junior Int'l Co. v. M/V Sokai Maru, 43 F.3d 153 (5th Cir.1995).
4Bertram v. Freeport McMoran, Inc., 35 F.3d 1008 (5th Cir.1994).
5Forrester v. Ocean Marine Indem. Co., 11 F.3d 1213 (5th Cir.1993).
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arising in areas or equipment under the vessel's active control, and (3) the duty to intervene when the
vessel owner knows of a serious hazard and the stevedore improvidently decides to ignore that risk.6
Neither the parties nor the record suggest that the third duty is an issue in this case. We proceed,
therefore, to a discussion of the first two.
The Supreme Court has described the contours of the turnover duty as follows:
A vessel must exercise ordinary care under the circumstances to turn over the ship and its
equipment and appliances in such condition that an expert and experienced [independent]
contractor, mindful of the dangers he should expect to encounter, arising from the hazards
of the ship's service or otherwise, will be able by the exercise of ordinary care to carry on ...
operations with reasonable safety to persons and property.7
The record reveals that Manuel and his supervisor knew that the shorn mooring line was lying on the
deck and that they repeatedly worked around it without incident during the course of their
sandblasting operations. Further, the Harrington crew could have remedied the hazard very easily
by exercising ordinary care, i.e., by simply moving the rope out of their way. The district court did
not err in concluding that the vessel owner was entitled to rely upon Harrington to exercise such care
within the confines of its workplace, and that no turnover duty owed by the vessel was breached.
Manuel observes, correctly, that an open and obvious danger is not a complete bar to liability
for a breach of the turnover duty.8 While the apparent nature of the hazard is not an automatic bar
to Manuel's recovery, he is nevert heless unable to reconcile the facts of this case with our
jurisprudence delineating the legal duties owed, respectively, by the vessel owner and the independent
6Scindia Steam Nav. Co. v. De los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1
(1981); Burchett v. Cargill, Inc., 48 F.3d 173 (5th Cir.1995). Although posited in Scindia in
terms of stevedoring operations, our jurisprudence generally has extended this reading of the
section 905(b) negligence action to other independent contractors falling under the Longshore and
Harbor Worker's Act. See, e.g., Teply v. Mobil Oil Corp., 859 F.2d 375 (5th Cir.1988); Hill v.
Texaco, Inc., 674 F.2d 447 (5th Cir.1982).
7Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, ----, 114 S.Ct. 2057, 2063, 129 L.Ed.2d
78 (1994) (internal quotations marks omitted) (citations omitted). A corollary to this turnover
duty requires the vessel owner to warn the independent contractor of hidden hazards or defects in
the vessel. Id. This aspect of the turnover duty is not implicated by the facts of this case.
8Teply. Contrast Polizzi v. M/V Zephyros II Monrovia, 860 F.2d 147 (5th Cir.1988)
(discussing corollary duty to warn of hidden hazards or defects).
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contractor.9 We have long held that when an independent contractor has actual knowledge of a
remediable hazardous condition the vessel owner's turnover duty is not implicated unless the
contractor's "only alternatives would be to leave his job or face trouble for delaying work."10 Given
the absence of any such showing Manuel's contention must be considered an invitation to expand the
turnover duty of the vessel owner under section 905(b) well beyond the bounds articulated by the
Supreme Court in Scindia, an invitation which we must decline.11
Manuel also invokes the second duty owed by the vessel owner, namely that "a shipowner
must exercise reasonable care to prevent injuries to [independent contractors] in areas that remain
under the active control of the vessel."12 This duty recognizes that although a vessel owner no longer
retains the primary responsibility for safety in a work area turned over to an independent contractor,
no such cession results as relates to areas or equipment over which the vessel's crew retains
operational control.13 The record reflects that the back deck where Manuel's accident occurred was
being used by Harrington employees to house and operate their sandblasting equipment. There is no
evidence that the vessel's crew was active in that area while the Harrington crew was at work. In the
absence of any proof that this area was within the active control of the vessel, we must agree with
the district court that the vessel owner had no general duty to remedy hazards arising there. The
9See, e.g., Williams v. M/V SONORA, 985 F.2d 808 (5th Cir.1993).
10Morris v. Compagnie Maritime Des Chargeurs Reunis, S.A., 832 F.2d 67, 70 (5th Cir.1987)
(listing cases), cert. denied, 485 U.S. 1022, 108 S.Ct. 1576, 99 L.Ed.2d 891 (1988).
11Scindia. Manuel relies upon the Ninth Circuit's expansive reading of the vessel owner's duty
in Riggs v. Scindia Steam Nav. Co., 8 F.3d 1442 (9th Cir.1993), vacated and remanded, --- U.S.
----, 114 S.Ct. 2701, 129 L.Ed.2d 830 (1994). That opinion was vacated by the Supreme Court
and remanded for further consideration in light of Howlett. On remand, the Ninth Circuit reversed
its previous position and affirmed a grant of summary judgment in favor of the vessel owner.
Riggs v. Scindia Steam Nav. Co., Ltd., 35 F.3d 1466 (9th Cir.1994), cert. denied, --- U.S. ----,
115 S.Ct. 1694, 131 L.Ed.2d 558 (1995).
12Howlett at ----, 114 S.Ct. at 2063 (internal quotation marks omitted) (citation omitted).
13Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13 (5th Cir.1992); Masinter v. Tenneco
Oil Co., 867 F.2d 892 (5th Cir.1989). As we have stated previously, the duty to intervene is not
implicated in this case.
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